Abstract

Much of the debate about race and police violence against African Americans center on a question about causation: What precisely causes police violence against African Americans? For some, the answer is decidedly simple: rogue police officers acting outside of the boundaries of the law. For others, the answer is far more complex and implicates a number of structural problems, including racial inequality. Typically, both accounts marginalize the role of law. The rogue cop story highlights bad apples, not bad laws; and the structural racial inequality story generally excludes or diminishes the role of law as a structural force that contributes to police violence.

This Article puts the law back on the table—not as the only, or even the most, important variable contributing to police violence against African Americans, but as a factor that we still ought to take quite seriously. More precisely, the Article explains how a particular area of Fourth Amendment law—stop-and-frisk jurisprudence—facilitates police violence against African Americans.

The point of the departure for this Article is a theoretical model that explains the persistence of police violence against African Americans. The Article then describes how stops and frisks fit into that framework. In the context of the discussion, the Article challenges the standard account of Terry v. Ohio, the case that constitutionalized stop-and-frisk, as an opinion in which Chief Justice Warren split the proverbial baby. The Article contends that Justice Warren was no Solomon; he gave the baby to the government in the blanket of reasonable suspicion, a burden of proof that is lower than probable cause. Making matters worse, the Chief Justice largely dismissed concerns about race. More precisely, he professed powerlessness to address the very social problem his opinion exacerbated—police targeting of African Americans and their communities.

Central to the Article is the claim that the reasonable suspicion problem in Terry is not just that Justice Warren authorized police officers to stop-and-frisk people when officers have reasonable suspicion that their or someone else’s safety is in jeopardy. The problem is also that the Chief Justice did not expressly prohibit police officers from using reasonable suspicion to stop-and-question people when officers have no concerns about their or anyone else’s safety. Scholars have paid scant attention to this latter dimension of Justice Warren’s analysis, a dimension that paved the way for stop-and-question to become a core feature of Fourth Amendment law. The Article argues that, in addition to further eroding the probable cause standard on which Fourth Amendment law has historically rested, the constitutionalization of stop-and-question enables police officers to target African Americans with little to no justification. The frequency of those engagements is one of the factors that overexposes African Americans to the possibility of violence.